10 USC § 2164 - Department of Defense domestic dependent elementary and secondary schools

(a) Authority of Secretary.—

(1) If the Secretary of Defense makes a determination that appropriate educational programs are not available through a local educational agency for dependents of members of the armed forces and dependents of civilian employees of the Federal Government residing on a military installation in the United States (including territories, commonwealths, and possessions of the United States), the Secretary may enter into arrangements to provide for the elementary or secondary education of the dependents of such members of the armed forces and, to the extent authorized in subsection (c), the dependents of such civilian employees.

(2) The Secretary may, at the discretion of the Secretary, permit dependents of members of the armed forces and, to the extent provided in subsection (c), dependents of civilian employees of the Federal Government residing in a territory, commonwealth, or possession of the United States but not on a military installation, to enroll in an educational program provided by the Secretary pursuant to this subsection. If a member of the armed forces is assigned to a remote location or is assigned to an unaccompanied tour of duty, a dependent of the member who resides, on or off a military installation, in a territory, commonwealth, or possession of the United States, as authorized by the member’s orders, may be enrolled in an educational program provided by the Secretary under this subsection.

(3)

(A) Under the circumstances described in subparagraph (B), the Secretary may, at the discretion of the Secretary, permit a dependent of a member of the armed forces to enroll in an educational program provided by the Secretary pursuant to this subsection without regard to the requirement in paragraph (1) with respect to residence on a military installation.

(B) Subparagraph (A) applies only if—

(i) the dependents reside in temporary housing (regardless of whether the temporary housing is on Federal property)—

(I) because of the unavailability of adequate permanent living quarters on the military installation to which the member is assigned; or

(II) while the member is wounded, ill, or injured; and

(ii) the Secretary determines that the circumstances of such living arrangements justify extending the enrollment authority to include the dependents.

(b) Factors for Secretary To Consider.—

(1) Factors to be considered by the Secretary of Defense in making a determination under subsection (a) shall include the following:

(A) The extent to which such dependents are eligible for free public education in the local area adjacent to the military installation.

(B) The extent to which the local educational agency is able to provide an appropriate educational program for such dependents.

(2) For purposes of paragraph (1)(B), an appropriate educational program is a program that, as determined by the Secretary, is comparable to a program of free public education provided for children by the following local educational agencies:

(A) In the case of a military installation located in a State (other than an installation referred to in subparagraph (B)), local educational agencies in the State that are similar to the local educational agency referred to in paragraph (1)(B).

(B) In the case of a military installation with boundaries contiguous to two or more States, local educational agencies in the contiguous States that are similar to the local educational agency referred to in paragraph (1)(B).

(C) In the case of a military installation located in a territory, commonwealth, or possession, the District of Columbia public schools, except that an educational program determined comparable under this subparagraph may be considered appropriate for the purposes of paragraph (1)(B) only if the program is conducted in the English language.

(c) Eligibility of Dependents of Federal Employees.—

(1)

(A) A dependent of a Federal employee residing in permanent living quarters on a military installation at any time during the school year may enroll in an educational program provided by the Secretary of Defense pursuant to subsection (a) for dependents residing on such installation.

(B) A dependent of a United States Customs Service employee who resides in Puerto Rico, but not on a military installation, may enroll in an educational program provided by the Secretary pursuant to subsection (a) in Puerto Rico in accordance with the same rules as apply to a dependent of a Federal employee residing in permanent living quarters on a military installation.

(2)

(A) Except as provided in subparagraphs (B) and (C), a dependent of a Federal employee who is enrolled in an educational program provided by the Secretary pursuant to subsection (a) and who is not residing on a military installation may be enrolled in the program for not more than five consecutive school years.

(B) At the discretion of the Secretary, a dependent referred to in subparagraph (A) may be enrolled in the program for more than five consecutive school years if the dependent is otherwise qualified for enrollment, space is available in the program, and the Secretary will be reimbursed for the educational services provided. Any such extension shall cover only one school year at a time.

(C) Subparagraph (A) shall not apply to an individual who is a dependent of a Federal employee in the excepted service (as defined in section 2103 of title 5) and who is enrolled in an educational program provided by the Secretary pursuant to subsection (a) in Puerto Rico, Wake Island, Guam, American Samoa, the Northern Mariana Islands, or the Virgin Islands.

(D) Subparagraph (A) shall not apply to a dependent covered by paragraph (1)(B). No requirement under this paragraph for reimbursement for educational services provided for the dependent shall apply with respect to the dependent, except that the Secretary may require the United States Customs Service to reimburse the Secretary for the cost of the educational services provided for the dependent.

(d) School Boards.—

(1) The Secretary of Defense shall provide for the establishment of a school board for Department of Defense elementary and secondary schools established at each military installation under this section. The Secretary may provide for the establishment of one school board for all such schools in the Commonwealth of Puerto Rico and one school board for all such schools in Guam instead of one school board for each military installation in those locations.

(2) The school board shall be composed of the number of members, not fewer than three, prescribed by the Secretary.

(3) The parents of the students attending the school shall elect the school board in accordance with procedures which the Secretary shall prescribe.

(4)

(A) A school board elected for a school under this subsection may participate in the development and oversight of fiscal, personnel, and educational policies, procedures, and programs for the school, except that the Secretary may issue any directive that the Secretary considers necessary for the effective operation of the school or the entire school system.

(B) A directive referred to in subparagraph (A) shall, to the maximum extent practicable, be issued only after the Secretary consults with the appropriate school boards elected under this subsection. The Secretary shall establish a process by which a school board or school administrative officials may formally appeal the directive to the Secretary of Defense.

(5) Meetings conducted by the school board shall be open to the public, except as provided in paragraph (6).

(6) A school board need not comply with the provisions of the Federal Advisory Committee Act (5 U.S.C. App.), but may close meetings in accordance with such Act.

(7) The Secretary may provide for reimbursement of a school board member for expenses incurred by the member for travel, transportation, lodging, meals, program fees, activity fees, and other appropriate expenses that the Secretary determines are reasonable and necessary for the performance of school board duties by the member.

(e) Administration and Staff.—

(1) The Secretary of Defense may enter into such arrangements as may be necessary to provide educational programs at the school.

(2) The Secretary may, without regard to the provisions of any other law relating to the number, classification, or compensation of employees—

(A) establish positions for civilian employees in schools established under this section;

(B) appoint individuals to such positions; and

(C) fix the compensation of such individuals for service in such positions.

(3)

(A) Except as provided in subparagraph (B), in fixing the compensation of employees appointed for a school pursuant to paragraph (2), the Secretary shall consider—

(i) the compensation of comparable employees of the local educational agency in the capital of the State where the military installation is located;

(ii) the compensation of comparable employees in the local educational agency that provides public education to students who reside adjacent to the military installation; and

(iii) the average compensation for similar positions in not more than three other local educational agencies in the State in which the military installation is located.

(B) In fixing the compensation of employees in schools established in the territories, commonwealths, and possessions pursuant to the authority of this section, the Secretary shall determine the level of compensation required to attract qualified employees. For employees in such schools, the Secretary, without regard to the provisions of title 5, may provide for the tenure, leave, hours of work, and other incidents of employment to be similar to that provided for comparable positions in the public schools of the District of Columbia. For purposes of the first sentence, a school established before the effective date of this section pursuant to authority similar to the authority in this section shall be considered to have been established pursuant to the authority of this section.

(4)

(A) The Secretary may, without regard to the provisions of any law relating to the number, classification, or compensation of employees—

(i) transfer employees from schools established under this section to schools in the defense dependents’ education system in order to provide the services referred to in subparagraph (B) to such system; and

(ii) transfer employees from such system to schools established under this section in order to provide such services to those schools.

(B) The services referred to in subparagraph (A) are the following:

(i) Administrative services.

(ii) Logistical services.

(iii) Personnel services.

(iv) Such other services as the Secretary considers appropriate.

(C) Transfers under this paragraph shall extend for such periods as the Secretary considers appropriate. The Secretary shall provide appropriate compensation for employees so transferred.

(D) The Secretary may provide that the transfer of an employee under this paragraph occur without reimbursement of the school or system concerned.

(E) In this paragraph, the term “defense dependents’ education system” means the program established and operated under section 1402(a) of the Defense Dependents’ Education Act of 1978 (20 U.S.C. 921 (a)).

(f) Substantive and Procedural Rights and Protections for Children.—

(1) The Secretary shall provide the following substantive rights, protections, and procedural safeguards (including due process procedures) in the educational programs provided for under this section:

(A) In the case of children with disabilities aged 3 to 5, inclusive, all substantive rights, protections, and procedural safeguards (including due process procedures) available to children with disabilities aged 3 to 5, inclusive, under part B of the Individuals with Disabilities Education Act (20 U.S.C. 1411 et seq.).

(B) In the case of infants or toddlers with disabilities, all substantive rights, protections, and procedural safeguards (including due process procedures) available to infants or toddlers with disabilities under part C of such Act (20 U.S.C. 1431 et seq.).

(C) In the case of all other children with disabilities, all substantive rights, protections, and procedural safeguards (including due process procedures) available to children with disabilities who are 3 to 5 years old under part B of such Act.

(2) Paragraph (1) may not be construed as diminishing for children with disabilities enrolled in day educational programs provided for under this section the extent of substantive rights, protections, and procedural safeguards that were available under section 6(a) ofPublic Law 81–874 (20 U.S.C. 241 (a)) to children with disabilities as of October 7, 1991.

(3) In this subsection:

(A) The term “children with disabilities” has the meaning given the term in section 602 of the Individuals with Disabilities Education Act (20 U.S.C. 1401).

(B) The term “infants or toddlers with disabilities” has the meaning given the term in section 632 of such Act (20 U.S.C. 1432).

(g) Reimbursement.— When the Secretary of Defense provides educational services under this section to an individual who is a dependent of an employee of a Federal agency outside the Department of Defense, the head of the other Federal agency shall, upon request of the Secretary of Defense, reimburse the Secretary for those services at rates routinely prescribed by the Secretary for those services. Any payments received by the Secretary under this subsection shall be credited to the account designated by the Secretary for the operation of educational programs under this section.

(h) Continuation of Enrollment Despite Change in Status.—

(1) The Secretary of Defense shall permit a dependent of a member of the armed forces or a dependent of a Federal employee to continue enrollment in an educational program provided by the Secretary pursuant to subsection (a) for the remainder of a school year notwithstanding a change during such school year in the status of the member or Federal employee that, except for this paragraph, would otherwise terminate the eligibility of the dependent to be enrolled in the program.

(2) The Secretary may, for good cause, authorize a dependent of a member of the armed forces or a dependent of a Federal employee to continue enrollment in an educational program provided by the Secretary pursuant to subsection (a) notwithstanding a change in the status of the member or employee that, except for this paragraph, would otherwise terminate the eligibility of the dependent to be enrolled in the program. The enrollment may continue for as long as the Secretary considers appropriate.

(3) Paragraphs (1) and (2) do not limit the authority of the Secretary to remove a dependent from enrollment in an educational program provided by the Secretary pursuant to subsection (a) at any time for good cause determined by the Secretary.

(i) American Red Cross Employee Dependents in Puerto Rico.—

(1) The Secretary may authorize the dependent of an American Red Cross employee described in paragraph (2) to enroll in an education program provided by the Secretary pursuant to subsection (a) in Puerto Rico if the American Red Cross agrees to reimburse the Secretary for the educational services so provided.

(2) An employee referred to in paragraph (1) is an American Red Cross employee who—

(A) resides in Puerto Rico; and

(B) performs, on a full-time basis, emergency services on behalf of members of the armed forces.

(3) In determining the dependency status of any person for the purposes of paragraph (1), the Secretary shall apply the same definitions as apply to the determination of such status with respect to Federal employees in the administration of this section.

(4) Subsection (g) shall apply with respect to determining the reimbursement rates for educational services provided pursuant to this subsection. Amounts received as reimbursement for such educational services shall be treated in the same manner as amounts received under subsection (g).

(j) Tuition-free Enrollment of Dependents of Foreign Military Personnel Residing on Domestic Military Installations and Dependents of Certain Deceased Members of the Armed Forces.—

(1) The Secretary may authorize the enrollment in a Department of Defense education program provided by the Secretary pursuant to subsection (a) of a dependent not otherwise eligible for such enrollment who is the dependent of an individual described in paragraph (2). Enrollment of such a dependent shall be on a tuition-free basis.

(2) An individual referred to in paragraph (1) is any of the following:

(A) A member of a foreign armed force residing on a military installation in the United States (including territories, commonwealths, and possessions of the United States).

(B) A deceased member of the armed forces who died in the line of duty in a combat-related operation, as designated by the Secretary.

Source

(Added Pub. L. 103–337, div. A, title III, § 351(a),Oct. 5, 1994, 108 Stat. 2727; amended Pub. L. 104–106, div. A, title X, § 1075,Feb. 10, 1996, 110 Stat. 450; Pub. L. 104–201, div. A, title XVI, § 1608,Sept. 23, 1996, 110 Stat. 2737; Pub. L. 105–261, div. A, title III, § 371(a)–(c)(2), Oct. 17, 1998, 112 Stat. 1988, 1989; Pub. L. 106–65, div. A, title III, §§ 352, 353,Oct. 5, 1999, 113 Stat. 572; Pub. L. 106–398, § 1 [[div. A], title III, § 361], Oct. 30, 2000, 114 Stat. 1654, 1654A–76; Pub. L. 108–446, title III, § 305(a),Dec. 3, 2004, 118 Stat. 2804; Pub. L. 111–84, div. A, title V, § 534,Oct. 28, 2009, 123 Stat. 2292; Pub. L. 111–383, div. A, title V, § 561,Jan. 7, 2011, 124 Stat. 4221.)

References in Text

The Federal Advisory Committee Act, referred to in subsec. (d)(6), is Pub. L. 92–463, Oct. 6, 1972, 86 Stat. 770, as amended, which is set out in the Appendix to Title 5, Government Organization and Employees.

The effective date of this section, referred to in subsec. (e)(3)(B), is the date of enactment of Pub. L. 103–337which was approved Oct. 5, 1994.

The Individuals with Disabilities Education Act, referred to in subsec. (f)(1), is title VI of Pub. L. 91–230, Apr. 13, 1970, 84 Stat. 175, as amended. Parts B and C of the Act are classified generally to subchapters II (§ 1411 et seq.) and III (§ 1431 et seq.), respectively, of chapter 33 of Title 20, Education. For complete classification of this Act to the Code, see section 1400 of Title 20 and Tables.

Section 6(a) ofPublic Law 81–874 (20 U.S.C. 241 (a)), referred to in subsec. (f)(2), was repealed by Pub. L. 103–382, title III, § 331(b),Oct. 20, 1994, 108 Stat. 3965.

Amendments

2011—Subsec. (a)(3). Pub. L. 111–383added par. (3).

2009—Subsec. (j). Pub. L. 111–84added subsec. (j).

2004—Subsec. (f)(1)(B). Pub. L. 108–446, § 305(a)(1), substituted “infants or toddlers” for “infants and toddlers” in two places, “part C” for “part H”, and “1431 et seq.” for “1471 et seq.”.

Subsec. (f)(3)(A). Pub. L. 108–446, § 305(a)(2)(A), substituted “section 602” for “section 602 (a)(1)” and “1401” for “1401(a)(1)”.

Subsec. (f)(3)(B). Pub. L. 108–446, § 305(a)(2)(D), substituted “or toddlers” for “and toddlers”, “632” for “672(1)”, and “1432” for “1472(1)”.

Pub. L. 108–446, § 305(a)(2)(B), (C), redesignated subpar. (C) as (B) and struck out former subpar. (B) which defined the term “children with disabilities aged 3 to 5, inclusive”.

Subsec. (f)(3)(C). Pub. L. 108–446, § 305(a)(2)(C), redesignated subpar. (C) as (B).

2000—Subsec. (i). Pub. L. 106–398added subsec. (i).

1999—Subsec. (c)(3). Pub. L. 106–65, § 353(1), struck out par. (3) which read as follows: “A dependent of a Federal employee may continue enrollment in a program under this subsection for the remainder of a school year notwithstanding a change during such school year in the status of the Federal employee that, except for this paragraph, would otherwise terminate the eligibility of the dependent to be enrolled in the program. The preceding sentence does not limit the authority of the Secretary to remove the dependent from enrollment in the program at any time for good cause determined by the Secretary.”

Subsec. (d)(1). Pub. L. 106–65, § 352, inserted at end “The Secretary may provide for the establishment of one school board for all such schools in the Commonwealth of Puerto Rico and one school board for all such schools in Guam instead of one school board for each military installation in those locations.”

Subsec. (h). Pub. L. 106–65, § 353(2), added subsec. (h).

1998—Subsec. (a). Pub. L. 105–261, § 371(a)(1), (2), designated first sentence as par. (1) and second sentence as par. (2).

Subsec. (a)(2). Pub. L. 105–261, § 371(a)(3), inserted at end “If a member of the armed forces is assigned to a remote location or is assigned to an unaccompanied tour of duty, a dependent of the member who resides, on or off a military installation, in a territory, commonwealth, or possession of the United States, as authorized by the member’s orders, may be enrolled in an educational program provided by the Secretary under this subsection.”

Subsec. (c)(1). Pub. L. 105–261, § 371(c)(1), designated existing provisions as subpar. (A) and added subpar. (B).

Subsec. (c)(2)(B). Pub. L. 105–261, § 371(b), added subpar. (B) and struck out former subpar. (B) which read as follows: “A dependent referred to in subparagraph (A) may be enrolled in the program for more than five consecutive school years if the Secretary determines that, in the interest of the dependent’s educational well-being, there is good cause to extend the enrollment for more than the five-year period described in such subparagraph. Any such extension may be made for only one school year at a time.”

Subsec. (c)(2)(D). Pub. L. 105–261, § 371(c)(2), added subpar. (D).

1996—Subsec. (d)(7). Pub. L. 104–201added par. (7).

Subsec. (e)(4). Pub. L. 104–106added par. (4).

Effective Date of 1998 Amendment

Pub. L. 105–261, div. A, title III, § 371(c)(3),Oct. 17, 1998, 112 Stat. 1989, provided that: “The amendments made by this subsection [amending this section] shall apply with respect to academic years beginning on or after the date of the enactment of this Act [Oct. 17, 1998].”

Savings Provision

Section 351(c) ofPub. L. 103–337provided that: “Nothing in section 2164 of title 10, United States Code, as added by subsection (a), shall be construed as affecting the rights in existence on the date of the enactment of this Act [Oct. 5, 1994] of an employee of any school established under such section (or any other provision of law enacted before the date of the enactment of this Act that established a similar school) to negotiate or bargain collectively with the Secretary with respect to wages, hours, and other terms and conditions of employment.”

Transfer of Functions

For transfer of functions, personnel, assets, and liabilities of the United States Customs Service of the Department of the Treasury, including functions of the Secretary of the Treasury relating thereto, to the Secretary of Homeland Security, and for treatment of related references, see sections 203 (1), 551 (d), 552 (d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.